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Thursday, November 5, 2009

On November 3, 2009, the Financial Planning Coalition sent a letter to members of the House Financial Services Committee expressing the Coalition's concern regarding an amendment to the Investor Protection Act of 2009 (“IPA”), which was passed by the Committee on October 25, 2009. The amendment would extend FINRA’s authority to cover investment advisors who are associated with broker-dealers already under FINRA’s authority.

The Coalition, made up of the Certified Financial Planner Board of Standards, Inc., the Financial Planning Association, and the National Association of Personal Financial Advisors, is concerned with how the amendment extends FINRA’s authority to approximately 88 percent of investment adviser representatives and implicates application of the fiduciary duty to investment advice. The members and stakeholders of the Coalition’s respective organizations believe that the issue warrants greater deliberation and through the letter are urging the committee to conduct a more thorough examination before allowing the delegation of authority from the SEC to FINRA, a self-regulatory organization ("SRO") that has no experience overseeing advisers or enforcing the provisions of the Investment Advisers Act of 1940.

The Coalition believes that the amendment would be inconsistent with the Committee’s intent with respect to the IPA because, among other things, the Committee has already approved an amendment that would change the assets under management threshold for SEC registration of advisers which would shift responsibility for the oversight of some 4,200 advisers from the SEC to the states, freeing up substantial SEC resources to enhance oversight of advisers under its jurisdiction. Moreover, the IPA allows the SEC to collect user fees from advisers to cover the costs of compliance examinations. This, along with the IPA’s authorization for a doubling of the SEC’s budget over the next five years and the shifting of the oversight burden to the states, would provide the SEC the funding necessary to oversee advisers.

The Coalition also states that the SEC is more appropriate as a primary regulator for advisers for several reasons. First, the SEC has been overseeing advisers for seven decades under a principles-based approach designed to regulate those providing advice, while FINRA has no experience in regulating investment advice. FINRA’s rules-based regulatory approach and focus, while fine for the brokerage community, is not readily adaptable to advisers. Moreover, FINRA oversight of advisers who are associated with broker-dealers would create a new, parallel system of regulation for advisers. The Coalition argues that this could create a new opportunity for regulatory arbitrage, with advisers and brokers making decisions on their business models based on a preferred regulatory model. Finally, FINRA is an SRO comprised of broker-dealers and would be inclined to bring a broker’s perspective to adviser regulation. The Coalition believes that this conscious or subconscious conflict of interest could result in a broker bias in FINRA oversight of advisers, and otherwise increase the differences in how broker-associated advisers are regulated versus independent advisers.

A copy of the Coalition's letter to the House Financial Services Committee can be found here.

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